Tuesday, April 15, 2008

We have just learned of a motion to quash that was made by a university, in a Huntington, West Virginia, case, Arista v. Does 1-7, in February, and that the motion was denied by the Magistrate Judge yesterday.

The motion was made by Marshall University. It was represented by the Attorney General for the State of West Virginia.

The decision of the Magistrate Judge indicates that he was under the mistaken impression that the RIAA does not plan to sue the individuals identified for copyright infringement.

Since the decision is by a Magistrate, it is appealable to the District Court Judge.

This is only the second instance of which we are aware of a university contesting an RIAA subpoena, the first being the University of Oregon.

12 comments:

"The decision of the Magistrate Judge indicates that he was under the mistaken impression that the RIAA does not plan to sue the individuals identified for copyright infringement."

without having read anything so far, Sure, the RIAA asks for identities just for fun, to send them a free copy of the campus downloading propaganda information video or to give them hundrets of Promo CDs where they reserve ownership rights into!

The decision of this Magistrate Judge indicates that he was under the mistaken impression that the RIAA does not plan to sue the individuals identified for copyright infringement.

Considering that many lives are affected by this (unbelievable where have you been these last 3 years) decision by the Magistrate judge, is he willing to make the Defendants whole out of his own pocket if he happens to be wrong on this tiny little point?

"This epidemic of piracy on the Internet has spread to Marshall University (the “University”) where the seven Defendants in this case attend school."Pure speculation (if we don't want to accuse RIAA lawyer so early of "lying") on behalf of the RIAA! As the tech guy of the Uni pointed out "visitors" could used the IP addresses in question at the time in question. The RIAA does not know what school "defendants" attend! They do not even know that they have defendants at all. All they have are IP addresses not unknown persons doing something

"unlawfully downloading and distributing those recordings as well as thousands of other recordings to millions of other users"Where's the prove for these "millions" from those 7 students?

"Meanwhile, Defendants continue to infringe." so, where are the amendments to the complaint then if you know that for certain?

"Plaintiffs now insist that they seek only information “sufficient to identify the individual orindividuals assigned to the IP addresses listed in the subpoena at the date and time of infringement.”Opposition, p. 8. If this indeed is the only information that Plaintiffs seek, they should subpoenathis information. What they have asked for in fact is much broader: “[i]nformation, including names,current and permanent addresses, telephone numbers, and MAC addresses sufficient to identify thealleged infringers ....” Motion to Quash, Exhibit A, p. 1. Such a request requires that Marshall gobeyond identifying the individuals assigned to live in a particular dormitory room or the owner ofa computer associated with a particular IP address. Plaintiffs submit their subpoena does not requireMarshall to identify the alleged infringers, but Marshall effectively must identify the infringer togauge whether it is providing information “sufficient” to identify the alleged infringer."

That's a very good point! Now RIAA argues they demand something different than what they had asked for before. Regular Readers of this blog will remember that in a differetn case the RIAA already lied to a judge when they claimed that given the response they god from a nearly identical boilerplate sub against an ISP (AOL if i remember correctly) Taht this ISP identified the defendant in that case "as the infringer". So RIAA clearly asks for information who is an infringer not who might be responsible for an IP address asignment at a certain time!

Question Can the female RIAA lawyer be held legally responsible to the promiss she made in footnote 1 in document "arista_does1-7_080331RIAASurreplyMemo.pdf"?Install this device from DR. J and no more subpoenas will come!If I were a Uni guy I would nail the RIAA on that promiss. Why does RIAA not DONATE such a system to the university then?! It shouldn't be right that the universities have to pay for something that will benefit allegedly mainly the plaintiffs here! Clearly plaintiffs already have deals with the "expeert" that creates such filters and also acts as their HDD snooping guy, so they in reality are the ones that actually Profit from both situations: If infringement actually occurs via their totally inapropriate monetary demands, if no infringements occur via the money for the filter and the maintainance of the software for it RIAA and the corporations they work with are the only money making guys here!

I understand the order Of judge tailer now after I have read it that the 7 individuals that are not the alledged copyrightinfingers but only some IP-address holders can move on their own to squash the discloser of theri names to RIAA. Is that interpretation of the order correct ray?

Oh, you mean because they still have music files on their computers, even if they're not even connected to the Internet any longer, they're still infringing because their copies aren't authorized.

And you know this how?

Oh, you don't really know anything about their computers, if they're currently connected to the Internet, if any music files remain on them, or if any P2P applications are running any longer.

But you swear to the judge that you do.

Oh, you lied.

And from the Sureply:

Plaintiffs have made abundantly and repeatedly clear, both in their Opposition to the University's Motion to Quash and again at the March 18, 2008 hearing, that they are in no way asking the University to undertake any factual investigation to comply with the subpoena.

So you don't care if the information is accurate as long as you've given someone to sue.

AND THE JUDGE IS WILLING TO PERMIT THIS??? It boggles the mind.

Lastly, from the judge himself:

by their subpoena, seek names and other identifying information of the persons associated with the IP addresses at the particular dates and times.

Also let me take a moment to commend the Marshall University Board of Governors for taking action to protect its students' rights. Anybody thinking of applying to Marshall -- this action on the part of its Board of Governors should count as a big plus. This is an institution run by conscientious people who believe in the rule of law. Also hats off to its attorneys, who were absolutely right in what they wrote in their motion papers.

That's the best suggestion I've seen in a long time. If the RIAA was truly being damaged by millions of files shared, and if they have a great workable solution in Dr. J's work, it would be a far more effective use of their resources to give this solution to the colleges and encourage them to implement immediately.

And since they "know" that this solution fixes everything, they wouldn't even need to be searching colleges for infringers any longer.

(Of course they know that this filtering system is total bunk, and the colleges that have it are simply paying Protection Money to the extortionists.)-DM

I guess you've had so many thoughts which you've self-censored because of my comment policy that you've memorized the number of the rule you're most often tempted to violate: the one that prohibits intemperate criticism of judges and attorneys.

I know the feeling.

When I see a decision like this one, where the Magistrate decides the motion as if the RIAA is just looking for information, when the RIAA has already sued the person, I feel the same way.

Marshall should just provide a MAC address for the IPs in question and state it was unable to determine the user from the information given.

In college setting, especially in dormitories, computers rarely need to be logged in, as is traditionally done with residential internet services. There's no way to register an natural person to the computer if they don't have any authentication.

Arista et al can then search all the MAC addresses for all the internet devices of all the people in dormitory, and conduct the investigation themselves. I'd imagine you'd need a subpoena somewhere along the line there.

If the university does appeal to the District Court Judge, can they use the RIAA's whole history of suing as a way to obtain the identity of Does as evidence that the Magistrate Judge was mistaken, or would that information not be allowed because it didn't happen in this district? I remember reading something about rulings in one district not necessarily becoming binding in other districts; is evidence of the RIAA's past behavior the same type of thing?

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove